Attorney General's brief argues against Ferguson appeal

COLUMBIA — The Attorney General's Office has filed a response with multiple arguments against Ryan Ferguson's appeal for a new trial.

Ferguson was convicted of murder in the 2001 killing of Columbia Tribune sports editor Kent Heitholt, largely on Charles Erickson's trial testimony which implicated Ferguson in the murder. In a sworn statement last year, Erickson recanted his testimony and said he acted alone in the murder. The appeals court ruled that it would consider Erickson's new testimony and said it will decide whether to grant Ferguson a new trial.

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Ryan Ferguson waits for proceedings to start Friday, April 23, 2004, in Columbia.

This brief, filed by Assistant Attorney General Shaun Mackelprang on Friday, argues against granting Ryan Ferguson a new trial.

But Assistant Attorney General Shaun Mackelprang filed a brief Friday with the Western District Court of Appeals asking that the court deny Ferguson's request.

Ferguson's attorney, Kathleen Zellner, could not be reached for comment.

In his original appeal, Ferguson argued that his counsel was ineffective for failing to refute Erickson's testimony.

The prosecution's latest response argues that Ferguson's counsel wasn't ineffective because it called three witnesses to counter Erickson's testimony.

Mackelprang made other arguments in the brief supporting the circuit court's original decision to deny Ferguson's appeal, including that the court acted appropriately in denying Ferguson's claims that the prosecution did not properly share evidence.

Ferguson's defense has 15 days from Saturday to file a reply, Mackelprang said. If the court follows its normal practice, a three-judge panel will review all of the filings once Ferguson's defense files its reply, Mackelprang said. He said he didn't know when the court will finish reviewing the case.

Boone County, MO Ferguson & Erickson Nov 1, 2001 (Columbia) Ryan Ferguson and Chuck Erickson were convicted of the brutal murder of Columbia Tribune sports editor Kent Heitholt. A janitor, Jerry Trump, caught a glimpse of two young white men running away from Heitholt's car around the time of the murder. Trump said he could not provide a detailed description of them. Two years after the crime, after reading anniversary newspaper coverage, Erickson began telling friends he dreamed he had killed Heitholt.

When police questioned him, Erickson confessed but gave videotaped details inconsistent with the crime. He also named his friend Ryan Ferguson as his accomplice. Erickson said that following the murder, he and Ferguson went back to the bar they had been at earlier. However, the bar had closed more than a half-hour before the murder. Erickson said, that he, then 17, beat the 6'3", 315 lb. Heitholt with a tire iron just once. An autopsy showed Heitholt was beaten 11 times. Erickson said that afterwards, Ferguson, also 17, strangled the victim. He did not know how, and seemed surprised when told that Heitholt had been strangled with his own belt.

There was no physical evidence linking either defendant to the crime. Nevertheless, Erickson pleaded to the crime, and was the state's star witness at trial against Ferguson. Trump, who had little memory at the time of the crime, identified Ferguson at trial. Ferguson is not absolutely sure that Erickson was not at the crime, but is adamant about his innocence. The jury could not get over the fact that Erickson was willing to implicate himself in the crime, if he did not do it. Ferguson will be eligible for parole in September 2042.

Since the trial other witnesses have come forward with testimony that had been withheld from the defense by the prosecution at trial. Shawna Ornt, a Columbia Tribune employee, testified at a post-trial hearing that she saw the two men that Trump had apparently seen near Heitholt's car. She did not see them doing anything other than standing there. One was near the front of the car while the other was near the back. She indicated that they both were older than Ferguson or Erickson and estimated that they were in their early 20s. She said she got a good look at the man at the back of the car, whom she described as having blondish hair and wearing a short-sleeve T-shirt. She said that this man was neither Ferguson nor Erickson and that he said to her, "Somebody's hurt. Get help." The man then casually walked away. Erickson testified that he was the one who spoke to Ornt, even though he had black hair and wore a hooded sweatshirt. He also said he was standing at the front of the car.

Christine Varner, a payroll supervisor, testified of how Trump told her about the crime, of how he was standing in the light, and could not identify the men he saw at all who were outside the light. Trump testified that he first identified Ferguson and Erickson while he was in prison from pictures in a Columbia Tribune article sent to him from his wife. However, his wife, Barbara Trump, gave a statement saying she never sent him any Tribune articles while he was in prison. Another witness, Dallas Mallory, disputed Erickson's testimony that Mallory was driving a car and that Erickson happened to meet him at a downtown intersection shortly after the murder. Mallory had had his photo taken with Erickson during an early evening Halloween party. This photo had apparently been used by police to question Erickson to see if it would cause him to remember any more details about the night of the murder. (48 Hours) (CrimeMagazine) (www.freeryanferguson.com) (Video) [6/09]